Alta Bates Hospital v. Mertle

[351]Opinion

ELKINGTON, J. The appeal before us is taken from an order in a condemnation action brought by plaintiff Alta Bates Hospital denying defendant Florence Mertle certain “litigation costs,” i.e., her attorney’s and appraiser’s fees, under Code of Civil Procedure section 1255a.

Section 1255a, subdivision (a), states; “The plaintiff [in a condemnation action] may abandon the proceeding at any time after the filing of the complaint and before the expiration of 30 days after final judgment, by serving on defendants and filing in court a written notice of such abandonment; and failure to comply with Section 1251 of this code [requiring payment of the assessed sum within 30 days after final judgment] shall constitute an, implied abandonment of the proceeding.”

Subdivision (c) of the section provides, as relevant, that upon such an abandonment defendants shall be awarded “their costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and during trial and reasonable attorney fees.”

It is now settled law that abandonment of a condemnation action under section 1255a may be either express or implied. (Mountain View Union High School District v. Ormonde, 195 Cal.App.2d 89, 94 [15 Cal.Rptr. 461]; County of Los Angeles v. Hale, 165 Cal.App.2d 22, 26 [331 P.2d 166]; Whittier Union High Sch. Dist. v. Beck, 45 Cal.App.2d 736, 739 [114 P.2d 731].) It is implied where the express “written notice of such abandonment” is not given, but “for any reason [the condemner] chooses to give up the intended taking” (Frustuck v. City of Fairfax, 230 Cal.App.2d 412, 417 [41 Cal.Rptr. 56]), or “when the condemner declines to carry the proceeding through to its conclusion” (Merced Irrigation Dist. v. Woolstenhulme, 4 Cal.3d 478, 505 [93 Cal.Rptr. 833, 483 P.2d 1]; see also Pacific Tel. & Tel. Co. v. Monolith, 234 Cal.App.2d 352, 358 [44 Cal.Rptr. 410]; Oak Grove School Dist. v. City Title Ins. Co., 217 Cal.App.2d 678, 698 [32 Cal.Rptr. 288]; City of Inglewood v. O. T. Johnson Corp., 113 Cal.App.2d 587, 591 [248 P.2d 536]).

It is a strict rule, however, that the condemner’s abandonment of the proceeding must be voluntary in order that section 1255a apply. (La Mesa-Spring Valley School Dist. v. Otsuka, 57 Cal.2d 309, 314 [19 Cal.Rptr. 479, 369 P.2d 7]; City of Los Angeles v. Abbott, 217 Cal. 184, 194-200 [17 P.2d 993]; City of Whittier v. Aramian, 264 Cal.App.2d 683, 686 [70 Cal.Rptr. 805].) Where the condemnation action is permanently